The Mandatory Nature of Inheritance
The American Journal of Jurisprudence, Vol.. 53, No. 105, 2008
27 Pages Posted: 1 Mar 2010 Last revised: 12 Oct 2010
Date Written: December 1, 2008
Although we usually conceive inheritance as part of the owner’s domain of control, it is not an accurate conception of inheritance law today. The article argues that there is an unrecognized duty to take part in inheritance, both in Common Law and Continental law. An owner of property has little chance to avoid being a benefactor. The structure of inheritance, based on a combination of testamentary freedom and intestacy, creates a mandatory system that pushes the owner to be part of the institution of inheritance. This unspoken duty leads to new conclusion regarding inheritance law. Thus, in Common law, testamentary freedom serves as a tool to achieve a higher purpose, continuity through property. Then, in order to fully understand the duty, the article compares this mandatory structure to the European system of forced heirship. It shows that both systems promote a duty to become a giver of inheritance, but in very different ways.
Keywords: Inheritance, Trusts and Estates, Testamentary Freedom, Forced Heirship, Continuity, Negative will
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